[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]
	Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> McLean v Caledonian MacBrayne Ltd [1999] ScotCS 6 (8 January 1999) URL: http://www.bailii.org/scot/cases/ScotCS/1999/6.html Cite as: [1999] ScotCS 6

[New search] [Help]

In this action the pursuer seeks an award of damages in respect of personal injuries which he claims to have suffered on or about 18 May 1995 while working in the course of his employment with the defenders as an able seaman, grade 1, on board their car ferry, the Isle of Arran, which operated between Kennacraig in Kintyre and Islay.

At the material time the pursuer was acting chief carpenter. He and the vessel's bosun, George Chiffers, were engaged in taking down certain signs which required to be re-painted. The signs in question faced out over the car deck. Access to them was gained from the boat deck, which was about five metres above the car deck. At the after edge of the boat deck there was a railing ("the inner railing"), beyond which was a walkway which was at the same level as the boat deck, and beyond the walkway there was a further railing ("the outer railing"). The signs were attached to the after side of the outer railing. There was no opening or gate in the inner railing. Accordingly, to reach the signs the pursuer had to climb over the inner railing from the boat deck onto the walkway. The surface of the walkway comprised a metal grid. The inner railing comprised four horizontal metal rails supported at intervals by vertical metal posts. The top rail was a little over a metre above the level of the boat deck and the walkway. The pursuer's case was that while he was climbing over the inner railing he slipped and injured his right ankle.

The pursuer's own account of the stage at which he fell was initially vague. He said that he was more or less over the rail when he slipped and fell onto the walkway. He landed on his side, with his right ankle underneath him. He had been descending from the railing. Under cross-examination he explained that when he fell, he landed with his head to the left as seen in the photograph No. 6/6 of process (i.e. to the starboard side of the vessel). He accepted that the railing had the appearance of a ladder. While climbing up the railing, he had a good foothold. When he got to the top, he had to swing his leg over. He swung his right leg over first, while his hands were on the top rail. Once straddling the railing, he held the top rail with both hands and swung his left leg over. It was then a matter of climbing down the other side, using the rails as rungs. When asked about how he came to fall, he said that he was coming off the bottom rail, and his right leg slipped and went under him. Later, when asked to describe the process of climbing over the rail movement by movement, he described putting one hand on the top rail, stepping with one foot on to the bottom rail, stepping with the other foot onto the second rail, swinging the latter leg (the right one) over the rail and placing the foot on the second rail (from the other side), swinging the second leg over and placing that foot on the same rung, then stepping down onto the walkway. He said that it was when he was putting his right leg onto the deck of the walkway that he slipped. The other foot was still on the rail. His foot slipped on the deck. He had been holding on with both hands to the top rail. He was wearing safety shoes with non-slip rubber soles. In re-examination he confirmed that he was facing in towards the railing holding the top rail. He just stepped down, then "went".

There was no other direct evidence about the mechanics of the fall. George Chiffers was in the vicinity, but did not see what happened. According to the pursuer's evidence, when he began to climb across the rail, having returned from fetching a hacksaw, Mr Chiffers was already on the walkway, working with the sign which they were taking down. He was turned away from the pursuer, facing his work. When the pursuer fell, however, Mr Chiffers came over and gave him a hand. The account given by Mr Chiffers was somewhat different. Although he had a vague recollection of the pursuer's having gone to fetch a hacksaw, his evidence was that it was the pursuer who crossed the inner railing first, and that he had himself remained on the boat deck. It was not clear what he was doing, but he said that he was not watching the pursuer. He could not remember seeing him climbing up the railing, or reaching the top. He did not see the pursuer falling. His first and only recollection was of seeing the pursuer standing on the walkway, reaching down to hold his ankle, with his face screwed up in pain. He repeated more than once that that was the only stage of the incident that he saw.

An accident report form (No. 6/2 of process) was completed by Robert Hunter, the chief officer of the vessel. The account of the accident recorded in it was in the following terms:

Mr Hunter confirmed making that record, but was unable to recall who had given him the account which he recorded. Initially he thought that it was probable that the bosun (Mr Chiffers) had told him, but later, when it was drawn to his attention that the report recorded that he had "observed" the state of the injured ankle, he accepted that the accident might have been reported to him by the pursuer himself. That was the pursuer's own evidence. He said that he did not report the accident at the time, but did so to Mr Hunter later in the day. He said that he told Mr Hunter that he had slipped off the rail and injured his ankle.

It is in my view clearly established that on the occasion in question the pursuer suffered an injury of some sort to his right ankle. Apart from the pursuer's own direct evidence, support for that conclusion can be drawn from Mr Chiffers' evidence of seeing the pursuer clutching his ankle with an expression of pain on his face. Whatever may be said about the precise terms of the accident report, it and Mr Hunter's evidence bear out that the ankle was observed to be swollen that evening. The next morning the pursuer went ashore when the vessel arrived in Port Ellen and consulted a local doctor, who observed severe bruising, made a tentative diagnosis of a fracture, and advised the pursuer not to bear weight and to have the ankle x-rayed as soon as possible (No. 33/2 of process). X-rays were taken on 20 May and again on 8 June and, whatever else those films may show, both Mr John Hamilton FRCS, the consultant orthopaedic surgeon who gave evidence for the defenders, and Dr N. C. McMillan, a consultant radiologist, could discern on them swelling of the soft tissues of the ankle. Mr Clancy for the defenders did not dispute that it was appropriate to conclude that the pursuer had indeed injured his right ankle on 18 May 1995.

Mr Clancy submitted, however, that there was no acceptable evidence on which to base a conclusion as to how the pursuer had come by that injury. In doing so, he pointed to a number of considerations. First, he said that it was inherently implausible that the pursuer should have suffered injury when stepping down from a stable position on the rail a distance of less than a foot, while wearing non-slip shoes. There was no evidence of any agency that might have caused him to slip. (I interpolate that there was no suggestion in the evidence that any motion on the part of the vessel contributed to the slip, or that weather conditions were other than calm.) Secondly, he pointed to the discrepancy between the terms of the accident report, on the one hand, and the pursuer's evidence of what happened and of what he reported, on the other. Thirdly, he pointed to the stark differences between the evidence of the pursuer and Mr Chiffers. It was, he suggested, particularly significant that the only thing that Mr Chiffers recalled seeing was the pursuer, on his feet, reaching down to hold his ankle. If the pursuer had fallen, surely Mr Chiffers would have seen him on the deck, even if he did not see him falling. Fourthly, Mr Clancy pointed to the terms of a report (No. 7/1/15 of process) by a Dr Mutch, who saw the pursuer in December 1995 and recorded him as describing himself as having slipped off a rail and fallen " a distance of two or three feet", which was a much greater distance than the pursuer described in evidence. In commenting adversely on the pursuer's reliability, Mr Clancy also relied on a point arising out of his medical history - whether he had had a previous injury to his right ankle; I shall return to that point in the context of the medical evidence.

I have come to the conclusion that I am able to accept, up to a point, the pursuer's account of how the accident happened. I accept that he had occasion to cross the inner railing to reach the walkway in order to work on the sign attached to the outer railing. I accept his description of how he went about climbing over the railing. I accept that he completed the stage of swinging each of his legs in succession over the top rail, and reached the stage of standing on the further side of the railing, facing towards the railing, and holding the top rail with his hands. I accept that somehow, in the final stage of the process, he lost his footing and twisted his right ankle quite severely. I accept that he probably fell to the deck. Although, if taken at face value, Mr Chiffers' evidence that he did not see the pursuer fall, and only saw him, in a standing position, reaching down to clutch his ankle, would seem to cast doubt on the pursuer's account of having fallen to the walkway and having been helped by Mr Chiffers, I prefer on balance the pursuer's account. In his description of the accident, vague though it was initially, the pursuer impressed me as a witness who was doing his best to give an honest account of what had happened. Mr Chiffers was an unusually nervous witness, and, although I was unable to discern the reason for his nervousness, I was left with an impression that his evidence was incomplete. In that situation, I am not prepared to treat the discrepancy between his evidence and the pursuer's as a sufficient reason for rejecting what was otherwise acceptable evidence from the pursuer about his fall. I remain uncertain precisely how the pursuer came to fall and twist his ankle. The pursuer's account is clearly of slipping. In so far as there was a loss of balance, that followed as a consequence of the slip. Whether his foot slipped off the rail onto the deck, or slipped when it made contact with the deck when he stepped down from the rail, is not clear. The former is the report which the pursuer said more than once he had given to Mr Hunter, albeit it is not precisely what Mr Hunter recorded. The latter is what the pursuer ultimately described in evidence. It seems to me that the truth may well be that the pursuer has no clear recollection of which of these was the mechanism of the accident. However he slipped, it was over in a moment. However he slipped, he landed in a way that involved quite a severe twisting injury to his ankle. It does not seem to me to be essential for the determination of the case that I should be able to come to a positive conclusion about whether the pursuer's foot slipped off the rail, or slipped on the deck.

It is convenient to turn next to the grounds of fault relied on by the pursuer. In article 3 of the condescendence the pursuer pleads a case of fault at common law, the essence of which is the assertion that in order to provide a safe means of access for him to the place where he was to work on removing the signs the defenders ought to have provided a gate in the inner railings, failing which temporary steps to enable him to climb safely over the rail. In article 4, a case is made under Regulation 4 of the Merchant Shipping (Health and Safety: General Duties) Regulations 1984, which provides inter alia as follows:

1. the provision and maintenance of ... systems of work that are, so far as reasonably practicable, safe and without risk to health."

I did not understand the pursuer to make an independent case under Regulation 4(1) separate from the specific case made under Regulation 4(2)(a). In article 5 cases are made under Regulations 4(1) and 8(1) of the Merchant Shipping (Safe Movement on Board Ship) Regulations 1988, which provide respectively as follows:

and

The case made under regulation 8(1) of the 1988 Regulations was ingenious, but in my view plainly wrong. The argument, as I understood it, was that the inner railing was originally provided as a guard on the dangerous after edge of the boat deck, over which a person might fall a distance of some five metres to the car deck (the walkway and outer railing not then being in place). There was evidence (albeit somewhat indirect) that at some stage an accident had happened in which a child, having climbed onto a bench which stood against the inner railing, fell over that railing to the car deck. The erection of the walkway and the outer railing was said to have followed as a precaution against the recurrence of such an accident. When the modification was undertaken, it was argued, the defenders had failed to reconsider the adequacy and design of the inner railing. Had they done so, they would have appreciated that it was no longer of adequate design or construction, because it failed to provide safe means of access to the walkway. Hence, it was argued, the inner railing now constituted a breach of Regulation 8(1). In my opinion, Regulation 8(1), read short, is concerned solely with securing that dangerous edges are fitted with secure fencing of adequate design and construction to prevent a person from falling over the edge. Although the inner railing was no doubt originally provided as a fence at a dangerous edge, it is in my view questionable whether it continued to fulfil that role after the modification, which added the walkway and the outer railing, had been effected. In any event, the absence of a gate or other means of crossing the inner railing did not constitute an inadequacy of the design or construction of the inner railing, viewed as the fencing of a dangerous edge. The pursuer's reliance on Regulation 8(1) was therefore, in my opinion, wholly misconceived.

I note that Regulation 4 of the 1984 Regulations is in terms the substance of which is similar to that of section 2 of the Health and Safety at Work etc. Act 1974, but the Regulations contain no provision equivalent to section 47(1)(a) of the 1974 Act excluding reliance upon them in civil proceedings. I note, too, that that Regulation, as well as Regulation 4(1) of the 1988 Regulations, lays on the employer a duty to "ensure" certain results, subject only to reasonable practicability. As was noted by Lord Sutherland in Mearns v Lothian Regional Council 1991 SLT 338, at 339K, that is a higher duty than that imposed at common law. Despite that distinction, however, as the pursuer's case was presented all the grounds of fault raised the same question, namely whether it was safe for the pursuer to gain access to the walkway by climbing over the inner railing, and if not, whether the provision of a gate in the railing, or temporary steps over it, would have obviated the danger.

While at first sight it might be thought that there is no very great danger in climbing over a railing about a metre in height which is made up of a number of roughly equally spaced metal rails, I am persuaded on the evidence that the inner railing did not afford a safe means of access to the walkway. The pursuer's expert witness, Captain Thomson, a master mariner and lecturer of very considerable experience, gave evidence in support of the pursuer's case. Although he had not inspected the vessel, he had seen photographs of the locus, and understandably felt able to comment on the case on that basis. He identified a risk of loss of balance on the part of a crew member who had to climb over the inner railing to reach the walkway. It became clear in the course of his evidence that what he saw as constituting the danger was the period when the man, having climbed up a rail or two, had to swing first one then the other leg over the top of the railing with nothing to hold onto other than the top rail, seeking new footholds on the other side of the railing, adjusting his handholds, and manoeuvring his body round to face in the opposite direction as he did so. He perceived a risk of loss of balance or loss of foot or handhold while undertaking that manoeuvre. He did not, on the other hand, see any lack of safety in simply stepping down from the railing onto the deck. Captain Thomson demurred to the defenders' attempt to equate the railing with a ladder, pointing in particular to the absence of handholds at head or shoulder height, and to the swinging and turning manoeuvre at the top of the railing. He said that he had never seen a working space such as the walkway to which there was no access other than by climbing a railing. He said that a gate could readily be provided, either of a drop-in design or hinged. He pointed to the illustration of just such a gate in the railing surrounding the life boat station on another of the defenders' vessels, the "Juno" (No. 6/8 of process, photographs 3 and 4). Although in his Report (No. 6/5 of process) he referred to the opportunity to install such a gate when the vessel was in dry dock, he confirmed in evidence that the job would be a simple one that could be carried out at any time. The suggestion, made in the defenders' pleadings, that the task of climbing over the railing was made safe by the proximity of a davit (the yellow object seen on the right hand side of the photograph No. 6/6 of process) which could serve as a handhold, was rejected by the pursuer on the basis that the davit was liable to swing, but it emerged in evidence that although capable of rotating, it could be and normally was held static by a pin through the flange at the point where the rotating arm was joined to the static base. Be that as it may, however, I was not persuaded that the availability of the davit as a handhold was an adequate answer to the risks which Captain Thomson perceived in the process of climbing over the railing. I accept Captain Thomson's evidence that there was no safe access provided to the walkway on which the pursuer required to work, and that the provision of a gate in the railing, which would have afforded such safe access, was reasonably practicable.

It is unnecessary in these circumstances for me to deal at length with the alternative suggestion that a set of temporary steps might have been provided. What Captain Thomson had in mind was a set of wooden steps, manufactured by the crew ad hoc, with a vertical post projecting a distance above the top step to provide a handhold while the person using the steps was at the highest point. That did not seem to me to be a particularly satisfactory or practical solution to the difficulty. In the result, since I hold that the provision of a gate would have been reasonably practicable, it is not necessary to pursue the alternative proposal further.

I therefore hold that in failing to provide a gate in the inner railing to enable safe access to be gained to the walkway for the purpose of work that required to be undertaken there the defenders were in breach of their statutory duties under Regulation 4(1) and (2)(a) of the 1984 Regulations and Regulation 4(1) of the 1988 Regulations. Although it is unnecessary to do so, I would have held that the failure to provide a gate also constituted negligence at common law.

In my opinion, however, the findings made so far are not sufficient to enable the pursuer to succeed on the merits. Mr Clancy submitted that the pursuer had failed to prove that the accident was caused by any breach of statutory duty or negligence committed by the defenders. It is therefore to the question of causation that I now turn. Once negligence or breach of statutory duty is established, liability depends on proof that the loss, injury and damage in question was caused by the negligence or breach of statutory duty. There is a sense in which it can be said that the pursuer's accident was caused by the defenders' negligence or breach of statutory duty. If the defenders had performed the duties incumbent on them, the pursuer would have made his way through the gate onto the walkway. He would have had no occasion to be stepping down from the railing, and would therefore not have slipped and fallen as I have held he did. The accident would therefore not have happened if the defenders had performed their duties. But a connection of that sort is not necessarily sufficient for liability. Mr Clancy submitted that the absence of a gate was a causa sine qua non, but not the causa causans of the accident. He drew my attention to the illustration of the limits of the normal rule of causation given by Lord Hoffmann in Banque Bruxelles SA v Eagle Star [1997] AC 191 at 213D. The point is, in my view, encapsulated in one sentence in the preceding paragraph of Lord Hoffmann's speech at 213C:

Applying that to the circumstances of the present case, the pursuer can in my view succeed only if his accident was the consequence of the danger which made it the defenders' duty to provide a gate in the inner railing. In my view it was not. If he had lost his balance or his footing while carrying out the precarious manoeuvre at the top of the railing, the accident would have been caused by the defenders' negligence and breach of statutory duty. But I have held that in fact he slipped and fell after the perilous stage of the manoeuvre had been completed. He fell while stepping down from the lower rail to the walkway. Mr Davidson argued that the manoeuvre should be seen as an undivided whole, since the pursuer's loss of his footing in the final stage may have been the consequence of momentum gathered in the earlier more precarious stage. That is not, however, how I understood the pursuer's evidence. He described himself as holding the top rail with both hands as he stepped down. Although the defenders were in my view wrong to characterise the whole operation of climbing over the railing as equivalent to ascending and descending a ladder, by the stage the pursuer had reached, that analogy had become more appropriate. That stage, as Captain Thomson (in my view rightly) accepted, was not a dangerous or risky manoeuvre, and would not by itself have made the provision of a gate necessary. I am therefore of opinion that, although the defenders ought to have provided a gate, the pursuer's accident was not, in the requisite sense, caused by their failure to do so. That is, in my view, fatal to the pursuer's case against the defenders.

In these circumstances the defenders' case of contributory negligence does not arise. That case was in two parts. One criticised the pursuer's failure to use the davit as a handhold, but the availability of the davit as a handhold, if of assistance at all, was so in my view only at the earlier stage which was past before the pursuer slipped. The other was directed against failure on the pursuer's part to place his feet with sufficient care. Since, however, I have held that the accident was not causally related to the danger which led to the duty to provide a gate, it is unnecessary to determine whether, if he had taken more care, the pursuer could have avoided the accident, although given the lack of danger in what he was seeking to do when he fell, it would be difficult, in my view, to avoid the conclusion that with more care the pursuer could readily have avoided slipping and falling.

In the result, I shall sustain the defenders' third plea-in-law, repel the pursuer's third plea-in-law, and grant decree of absolvitor in the defenders' favour.

I should, nevertheless, set out my views on quantification of the pursuer's loss. There was dispute as to the nature of the injury which the pursuer suffered. On record he averred that the ankle was fractured. Mr Davidson maintained that there was evidence from which I should conclude that that was so. He sought to rely in that connection on the evidence of the pursuer's general practitioner, Dr Chatterjee, and on his consultant orthopaedic surgeon, Mr El Hadidi, as well as on the view expressed by Professor D. L. Hamblen in a report dated 7 July 1995 (No. 7/1/13 of process). Mr Clancy submitted that there had been no fracture on 18 May 1995. He relied on the evidence given by Mr Hamilton and Dr McMillan. I am satisfied that the latter body of evidence is to be preferred. Dr Chatterjee, although he gave evidence that the x-rays of 20 May showed a recent fracture, was, in my view, heavily influenced by the view expressed by Professor Hamblen. The Professor was, however, as he noted in his report, labouring under the disadvantage that he had not been told when the accident had happened. Mr El Hadidi in evidence also appeared initially to proceed on the basis that there had been a material lapse of time between the accident and the first x-ray. His position in evidence in chief was that there was a perceptible difference between the May and the June x-rays, representing healing during that period. By the end of his evidence, however, I understood him to accept that there was no material difference between the two x-rays, and that, if the accident happened a mere two days before the May x-ray, there was no time for the calcification seen on that x-ray to represent healing of a fracture or other injury sustained in the accident. Mr Hamilton and Dr McMillan were both firmly of the view that the bony changes perceptible on the x-rays represented healing of a previous injury. They disagreed as to whether that previous injury was a fracture or ligamentous, but were at one in excluding a fracture sustained on 18 May 1995. Mr Hamilton cast further light on Professor Hamblen's view, which he understood from the terms of the Professor's report to be that the fracture had been of a particular sort normally associated with a further fracture higher up the leg (out of range of the x-rays seen by the Professor). Mr Hamilton was able to confirm that the pursuer had not in fact had such a further fracture. In all the circumstances I regard the evidence of Dr Chatterjee, Professor Hamblen and Mr El Hadidi, individually and cumulatively, as an insecure basis for the conclusion that the pursuer suffered a fracture on 18 May 1995. The cogent evidence of Mr Hamilton and Dr McMillan, who were both impressive witnesses, persuades me that there was no fracture sustained on that date, and that the nature of the injury which the pursuer suffered on that occasion was a severe sprain.

I should record at this stage that in the course of Dr McMillan's evidence Mr Davidson took objection to the line of evidence in which the previous injury suffered by the pursuer was identified as ligamentous rather than a fracture. At the time I allowed the evidence to be led under reservation of the objection. In his submissions Mr Davidson renewed his objection. The ground of objection was that the defenders' averment (introduced by late amendment) was that the previous injury had been a fracture, and there was no warning of the contention that it was ligamentous. In my opinion, however, it is impossible to separate Dr McMillan's evidence that the x-rays did not show a recent fracture from his explanation of his view of what they did show. The pursuer had clear warning in the amendment that the defender's position was that the x-rays did not bear out a fracture suffered in the accident. The defenders did not seek to rely on the previous injury in any way as an explanation of the post-accident symptoms, but pointed to it merely to show that on a proper interpretation of the x-rays there was no fracture sustained in the accident. In these circumstances I do not regard the objection as sound, and therefore repel it.

The question therefore comes to be what have been the practical consequences of the injury which the pursuer suffered on 18 May 1995. There is no dispute that there was an injury of material severity which rendered the pursuer unfit for work until the beginning of 1996, but the pursuer maintains that he remains disabled from employment, and limited in the work he can undertake on his croft. The ankle remains painful and his ability to use it limited. He limps intermittently and cannot walk far without pain. In challenging that view of the pursuer's condition, Mr Clancy relied principally on the evidence of Mr Hamilton.

In the first place, Mr Hamilton relied on a number of entries in the pursuer's medical records as casting light on the severity of the injury suffered in the accident. He pointed to the record made by Dr Rao when the pursuer first attended at Daliburgh Hospital a few days after the accident (No 7/1/23 of process). There it was recorded that the pursuer had bruising on the lateral aspect of the right ankle, but was able to walk and bear weight. The words "Had an old injury > 3 years ago" also appear. From their context, it seems highly likely that these words refer to an old injury of the right ankle, but the pursuer in evidence said that the only previous injury he mentioned to Dr Rao was one to his left ankle. Dr Rao's view of the x-rays taken that day was "? old healed crack # lower end of ® tibia". His diagnosis, expressed as an impression, was of a bad sprain of the right ankle, with a possible old fracture of the right tibia. Mr Hamilton regarded that as a sound assessment of the situation. He referred next to a report by Mr Chughtai dated 30 May 1995 (No. 7/1/24 of process). At that stage the plaster originally applied to the ankle was removed, the ankle was found to move well with minimal tenderness over the lateral side, and mobilisation with crutches and partial weightbearing progressing to full weightbearing after a week was ordered. Next there was a report dated 1 December 1995 by Mr Mutch, a clinical assistant in Professor Hamblen's department (No. 7/1/15 of process). In it, it is recorded that after the accident the acute pain settled in four to six weeks, and that the pursuer had been left with a stiff painful ankle. The prognosis was that it would take several months for the pain to settle, but that the pursuer should try to return to work after the new year. Mr Hamilton also referred to the relative absence of contact between the pursuer and his general practitioner after that date.

In the second place, Mr Hamilton relied on the results of his own clinical examination in August 1998, which are set out in his report (No. 7/3 of process). These included a finding that the pursuer was able to hop on the right foot, and squat and walk on his toes with no more than a complaint of tightness across the front of the right ankle. The pursuer was able to stand on tiptoe and on his heels, and invert both feet under load, with only the last of these tests provoking complaints of minor discomfort. There was limitation of dorsiflexion and plantar flexion with discomfort at the limits of movement. There was also some limitation of the subtalar joint. The girth of both calves was virtually equal. These clinical findings were broadly in agreement with those made by Mr El Hadidi in February 1997. Indeed in some details, Mr El Hadidi found less limitation. Mr Hamilton placed particular stress on the pursuer's ability to walk on his toes while squatting; that, he said, was quite a severe test of ankle function. He also stressed the absence of wasting in the calf muscles. He described both the discomfort and the restriction of mobility as minor.

In the third place, Mr Hamilton relied on his observation of the pursuer's mobility outwith the context of formal examination. He noted that he walked into the examination with a minimal limp, ascended and descended stairs "briskly", and, on leaving the clinic, walked a distance of some 300 yards without a limp, and with no apparent discomfort or restriction of his gait. These observations, along with the absence of wasting of the right calf muscles, led him to the conclusion, consistent with his findings on formal examination, that the pursuer's disability was less than he represented. The disparity was, he said, significant.

Mr Hamilton's conclusion was that, while the pursuer had suffered a moderately severe ligamentous injury to his ankle in the accident, he found nothing to suggest that he was now unfit for the work of a seaman (as that was put to him by counsel). He was fit for a wide range of activities. He could have been expected to make a go of returning to work by the end of 1995.

Evidence was led from the pursuer's brother, Donald MacLean, and from a friend, Donald Macdonald, who before his retiral was Chief Nursing Advisor to Lothian Health Board. They both gave evidence of the restriction of the pursuer's mobility and his capacity for work since the accident. Both saw him about once a year. Mr Macdonald's impression was that the pursuer limped constantly, although Mr MacLean thought it was more intermittent.

I approach the matter of the assessment of the pursuer's disability bearing in mind that, whatever the nature and date of the previous injury to the pursuer's right ankle (and the medical evidence which I have accepted left open the possibility that it was sufficiently long ago for the pursuer genuinely to have forgotten about it), he had been working regularly as a seaman for many years before the accident. The entry in Dr Rao's record about a previous injury, if it was indeed a reference to the right ankle and came from the pursuer, is difficult to reconcile with the pursuer's having forgotten any previous injury to his right ankle; but the pursuer denied in evidence having told Dr Rao of a previous right ankle injury, and I am not prepared to treat Dr Rao's record (without the support of evidence from him) as sufficient ground for disbelieving the pursuer on that point. Nor am I prepared to conclude, on the basis of Mr Hamilton's findings and observations, that the pursuer is consciously malingering. The pursuer did not strike me as in any way a dishonest witness, and there was no deliberate exaggeration detected in the course of Mr Hamilton's formal examination. I do, however, find Mr Hamilton's careful and cogent evidence as to the extent of the pursuer's disability compelling. Clinically, it is supported by Mr El Hadidi's findings some eighteen months earlier. I have no doubt that the pursuer's right ankle is not what it was before the accident. I accept that he continues to have discomfort and some limitation of movement. I accept that the ankle tires more easily than it did, and that at times that will be reflected in a limp. I accept, as Mr Hamilton accepted, that the injury disabled the pursuer from work until the beginning of 1996. Indeed, my assessment would be that it would be reasonable to allow a further period of continuing incapacity after that, perhaps until the anniversary of the accident. But I am not persuaded that in face of Mr Hamilton's assessment (supplemented by Mr El Hadidi's clinical findings) it has been proved that the pursuer remained unfit for his former employment for longer than that, or remains so unfit at present.

Mr Davidson's submissions as to the appropriate award of solatium were based on the view of the extent of the pursuer's disability which I have rejected. Under reference to the Judicial Studies Board Guidelines, paragraph 6(M)(c) (Bennett, Personal Injury Damages in Scotland, Appendix VII, page 394) he suggested an award of £7000. Mr Clancy, while accepting that that would be a reasonable award on the factual hypothesis on which it was proposed, suggested, on a somewhat less favourable view of the extent of the pursuer's disability than I have taken, and under reference to the following sub-paragraph of the same publication, £2500 to £3000. Mr Clancy also cited Nimmo v British Railways Board 1990 SLT 680, on any view a less serious case, in which the award was £1500. Had I been awarding damages, I would have awarded solatium of £4000, of which I would have apportioned £1000 to the future. Interest on past solatium, at 4% since the date of the accident, would have amounted to £440. The total award of solatium, inclusive of interest, would therefore have been £4440.

The rate of wage loss to date was agreed between counsel at £239 per week, and it was further agreed that the pursuer had received payments totalling £1800 which fell to be deducted. As I have indicated, moderating somewhat the full rigour of Mr Hamilton's assessment, I regard it as reasonable to accept that the pursuer was unfit for work for about a year after the accident. On that basis I would have awarded wage loss of £10,628 plus interest thereon (at 4% since the date of the accident) of £1558, making a total of £12186. On the view I have taken of the evidence, no question of continuing or future wage loss would have arisen.

The pursuer makes a claim under section 9 of the Administration of Justice Act 1982 in respect of his inability to render personal services to his sister, in the form of the working of the family croft in South Uist, which they occupy together. I am satisfied that for at least a year after the accident the pursuer's ability to work the croft was greatly impaired, and that even now there are some tasks that are beyond him. On the other hand, two factors restrict the amount of the loss. In the first place, the pursuer's work on the croft can only in part be seen as a service to his sister. Secondly, if he had been working, the pursuer would have been absent from the croft for two weeks in four, so to that extent his services would have been part-time, although I accept his evidence that so far as possible the work was so organised that it could be done when he was at home. Mr Davidson suggested that the pursuer's services should be valued at £500 per annum. I do not consider it appropriate to calculate the award by reference to a set annual figure. In my view justice would have been done, if I had been awarding damages, by a lump sum award under this head of £1000 inclusive of interest to date.

Finally, in connection with his employment with the defenders, the pursuer was entitled to a certain amount of free travel on their ferries, to the value of £105 a year. That has been lost as a result of the accident. There was evidence that the pursuer had not been in the habit of taking up his full entitlement to this concession, and on that basis Mr Davidson restricted the claim to one unit to date and two in the future. Mr Clancy did not dispute that element of the assessment. The total is thus £315, to which interest on the past component would add £15, making £330.

Accordingly, had I been awarding damages, I would have assessed the total value of the pursuer's claim, including interest to date, at £17,956, say £18,000. In the event, however, I shall assoilzie the defenders.